The United States Department of Justice warned last week that election officials could face federal penalties for destroying the digital ballot images automatically created by voting machines used throughout Florida and elsewhere in the country. The admonition, prompted by so-called “audits” in states like Arizona, came in the form of a pair of new DOJ guidance documents to remind states of their responsibilities under federal law with respect to preserving election records and protecting voting rights.
The first document makes clear that states are required to preserve all election materials, including electronic and digital records such as ballot images, for 22 months following a federal election. The Department of Justice documents published on July 28, 2021, make clear that election materials covered under federal law include electronic and digital records. Specifically, the DOJ document states:
*The Civil Rights Act of 1960, now codified at 52 U.S.C.. § § 20701-20706, governs certain “(f)ederal election records.” Section 301 of the Act requires state and local election officials to “retain and preserve” all records relating to any “act requisite to voting” for twenty-two months after the conduct of “any general, special, or primary election” at which citizens vote for “President, Vice President, president elector, Member of the Senate, (or) Members of the House of Representatives,” 52 U.S.C.. § 20701. The materials covered by Section 301 extend beyond “papers” to include other “records.” Jurisdictions must therefore also retain and preserve records created in digital or electronic form. Federal Law Constraints on Post-Election “Audits”: Constraints Imposed by the Civil Rights Act of 1960, page 2. (Emphasis added).
Further, the DOJ document notes that the federal law carries penalties, including criminal penalties, for election officials who willfully fail to comply:
*There are federal criminal penalties attached to willful failures to comply with the retention and preservation requirements of the Civil Rights Act. First, Section 301 itself makes it a federal crime for “(a)ny officer of election” or “custodian of election records to willfully fail to comply with the retention and preservation requirements.” 52 USC. § 20701. Secondly, Section 301 provides that any “person, whether or not an officer of election or custodian, who willfully steals, destroys, conceals, mutilates, or alters any record or paper” covered by Section 301’s retention and preservation requirement is subject to federal criminal penalties.” Id. 20702. “Violators of either section can face fines of up to $1,000 and imprisonment of up to one year for each violation.” Constraints Imposed by the Civil Rights Act of 1960, Id. Page 3.
The July 28, 2021, Justice Department document warning election officials against destroying records is timely as Florida Secretary of State Laurel Lee (SOS) and the Supervisors of Elections (SOEs) in eight counties have been fighting efforts to stop the preservation of digital ballot images. Although more than half of Florida SOEs are preserving ballot images, the SOS and 8 SOEs have erroneously claimed that federal and state laws do not require them to be preserved.
A lawsuit was brought last year by three Florida state legislators, eleven state voters and the Florida Democratic Party to compel the SOS and the SOEs of the eight largest counties to comply with federal and state law and preserve all ballot images for 22 months following a federal election.
Florida State Representative Joseph Geller sent a letter dated to Pamela S. Karlan, Deputy Assistant Attorney General at the Justice Department, dated May 25, 2021, asking that the DOJ investigate the practice of these 8 Florida SOEs of deleting digital ballot images in violation of federal law.
“We hope that the Department of Justice will take a serious look at this issue,” said State Representative Joseph Geller who is both a plaintiff and counsel in the case. Geller introduced a bill this year that would have amended the recount statute that allows ballot images to be used in recounts to specifically require that they also be preserved for 22 months. “The federal law clearly requires that these images be saved as a part of the election record. My bill would have brought the state recount law into compliance with the federal civil rights law and state public records laws.”
“Digital ballot images should be treated no differently than paper ballots, spoiled ballots, vote-by-mail envelopes, or any other election material that must be saved for at least 22 months following an election,” said Benjamin Tyler, general counsel for the Florida Democratic Party.
Marc Burton, a Voter Protection election law specialist, stressed that this matter must be resolved well before the 2022-midterm elections. “Preserving ballot images in all future Florida elections will increase accountability and transparency,” Burton said. “Saving these images will go a long way towards improving public confidence in election results—as opposed to the decrease in public confidence and participation that will result from voter suppression laws supported by legislators who also oppose full transparency in our elections.”